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USCA1 Opinion
May 3, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2265
UNITED STATES,
Appellee,
v.
ELIZABETH MOGAJI,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Chief U.S. District Judge] _________________________
____________________
Before
Torruella, Chief Judge, ___________
Stahl and Lynch, Circuit Judges. ______________
____________________
Elizabeth I. Mogaji on brief pro se. ___________________
Sheldon Whitehouse, United States Attorney, and James H. Leavey, __________________ ________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Defendant-appellant Elizabeth Mogaji __________
was convicted of one count of conspiracy to commit credit
card fraud and five counts of fraudulent use of access
devices. See 18 U.S.C. 1029(a)(2). She raises a number of ___
issues on appeal, all of them meritless.
1. Motion to Suppress. __________________
Defendant argues that the district court should
have suppressed the contents of the two plastic bags found by
Pamela McCutcheon and turned over to Secret Service Special
Agent James Mooney. The government correctly responds that
defendant has no standing to contest the search because she
did not have a reasonable expectation of privacy in the
common basement area of the duplex at 10-12 Stamford Avenue;
nor does the fact that defendant's driver's license was found
in one of the bags make a difference. See United States v. ___ ______________
Thornley, 707 F.2d 622, 625 (1st Cir. 1983) (defendant may ________
not protect himself against discovery of an item by taking it
from his own premises and hiding it in a place in which he
has no legal interest). Further, defendant did not assert
ownership of anything in the plastic bags at the suppression
hearing -- the time at which defendant must carry her burden
of showing a privacy expectation. See United States v. ___ _____________
Aguirre, 839 F.2d 854, 856 (1st Cir. 1988). Because _______
defendant plainly has no standing to contest the search, we
need not address defendant's credibility arguments.
2. Judgment of Acquittal. _____________________
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Defendant argues that there was insufficient
evidence to find her guilty of any of the counts in the
indictment. We will address these arguments by count, ending
with Count One, the conspiracy charge. We review challenges
to the sufficiency of the evidence to determine whether a
rational jury could find guilt beyond a reasonable doubt.
United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. _____________ _____________
1995). In so doing, we examine the evidence, along with
reasonable inferences, in the light most favorable to the
prosecution. Id. The evidence may be circumstantial and the ___
prosecution does not have to exclude every reasonable theory
of innocence. United States v. Batista-Polanco, 927 F.2d 14, _____________ _______________
17 (1st Cir. 1991). "Furthermore, the reviewing court does
not evaluate witness credibility, but resolves all
credibility issues in favor of the verdict." Flores-Rivera, _____________
56 F.3d at 323.
The above principles dispose of defendant's
assertions that many of the witnesses lied on the stand. We
have reviewed the trial transcript and conclude that these
challenges go instead to the credibility of the witnesses.
As such, we will not revisit the jury's evaluation in this
regard. See id. ___ ___
(a). Count Two. This count charges defendant _________
and Onyejekwe with using a Chase Manhattan Mastercard in the
name of Raymond Walters to purchase two checks in the total
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amount of $10,150 in violation of 1029(a)(2). Defendant
first argues that none of the exhibits submitted by the
government in relation to this charge showed that she had any
involvement in procuring these checks. However, defendant is
being charged as part of a conspiracy. Under the Pinkerton _________
doctrine, Pinkerton v. United States, 328 U.S. 640 (1946), a _________ _____________
member of a conspiracy may be held liable for the substantive
crimes committed by co-conspirators if the substantive crimes
were committed in furtherance of the conspiracy and while
defendant was a member of the conspiracy. United States v. ______________
Flores-Rivera, 56 F.3d at 324. _____________
We think that a rational jury could have found
beyond a reasonable doubt that Onyejekwe used the Raymond P.
Walters Mastercard in furtherance of the conspiracy and while
defendant was a part of the conspiracy. First, when
Onyejekwe and defendant were arrested for using a Mastercard
in the name of Beverly Onofrio on July 10, 1991, Onyejekwe
was carrying a list of names. On this list appeared names,
birth dates and addresses for both Onofrio and Walters.
Further, the use of the Walters Mastercard occurred in mid-
May to June of 1991 -- only a month prior to the two
occasions on which defendant and Onyejekwe used the Onofrio
Mastercard at the Lechmere stores. The jury could reasonably
infer, we think, that the use of both the Onofrio and Walters
Mastercards occurred as part of one conspiracy.
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Second, we believe the evidence supports the
conclusion that defendant was a participant in the conspiracy
when Onyejekwe used the Walters Mastercard. The common law
is that one who joins an ongoing conspiracy, as defendant
plainly did on July 6 and 10, "is deemed to have adopted the
prior acts and declarations of coconspirators, made after the
formation and in furtherance of the conspiracy." United ______
States v. Cintolo, 818 F.2d 980, 997 (1st Cir.), cert. ______ _______ _____
denied, 484 U.S. 913 (1987). Given that the names of Walters ______
and Onofrio appeared on the list Onyejekwe was carrying the
day defendant was arrested, there was sufficient evidence to
convict defendant on Count Two.
(b). Count Three. This count concerns the use ___________
of Beverly Onofrio's Mastercard at the Lechmere stores on
July 6 and 10, in 1991. Defendant first argues that Exhibit
#12, a photocopy of a Lechmere sales slip, was altered to
influence the jury. She contends that one order number was
written over another and that the employee number, 1034, was
handwritten, when the usual Lechmere custom is to have the
employee number pre-stamped on the sales slip. Looking at a
copy of the sales slip, however, we can discern only one
order number -- 0061903. As for the writing of the
employee's number, there is nothing to support defendant's
assertion that Lechmere's "usual practice" was to have a
printed number.
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Defendant next attacks the photo identification
procedure by which Alex Shtutin -- the Lechmere sales person
who sold the telefax machines to defendant and Onyejekwe on
July 6 -- identified defendant. However, as far as we can
tell, defendant never filed a motion to suppress the photo
identification prior to trial; in fact, she did not even
object to Shtutin's testimony at trial. We have held that
pretrial photo identification procedures are subject to the
requirements of Fed. R. Crim. P. 12(b)(3) and motions to
exclude such evidence must be made prior to trial. United ______
States v. Gomez-Benabe, 985 F.2d 607, 611-12 (1st Cir. 1993). ______ ____________
Given Gomez-Benabe, we think that defendant, by not having ____________
given the district court a chance to determine if she should
be excused from filing a pretrial motion to suppress, has
waived her right to challenge the identification procedure on
appeal.
(c). Counts Four and Five. These counts ______________________
concern, respectively, the use of Onofrio's Discover Card
during June 21, 1991 through June 25, 1991, and the use of
Onofrio's AT&T Universal Mastercard during June 26, 1991
through July 24, 1991. Defendant correctly notes, as she did
with respect to Count Two, that there was no direct evidence
that she ever used either card. Thus, under Pinkerton, the _________
government was required to prove that the use of the Discover
Card and the AT&T Universal Mastercard, during the period
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from June 21, 1991 to July 24, 1991, was carried out by
Onyejekwe in furtherance of the conspiracy and while
defendant was involved in the conspiracy. See Flores-Rivera, ___ _____________
56 F.3d at 324.
In regard to Count Four, the evidence is that
the Discover Card was found in Onyejekwe's possession when he
was arrested on July 10, and that Onofrio's name was on the
list of names Onyejekwe was carrying. Defendant argues that
she was in the hospital during the time the Discover Card was
used. However, absent any claim that she had withdrawn from
the conspiracy, the fact that defendant was somewhere else
during her co-conspirator's actions is not relevant. See ___
United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. _____________ ________
1987) (per curiam). Cessation of activity in a conspiracy is
not enough to show withdrawal; rather, a conspirator must
take some affirmative act such as a full confession to
authorities or a communication to a co-conspirator that he or
she is withdrawing from the enterprise. Id. Defendant does ___
not allege the existence of such circumstances here.
As for Count Five, defendant points out that
the AT&T Universal Mastercard never was recovered. She also
argues that there is no evidence connecting her to the use of
the AT&T card. We do not think that either ground is a
sufficient basis on which to overturn the jury's verdict.
First, the question is not only whether defendant used the ___
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AT&T card, but also whether Onyejekwe might have used it. In _________
this regard, we note that the AT&T card was applied for in
June 1991 and was used during the same period defendant and
Onyejekwe were using the other cards in Onofrio's name.
Because the evidence linking Onyejekwe to the use of
Onofrio's name is so strong, we think that the jury
rationally could find that Onyejekwe used Onofrio's AT&T
Universal Mastercard.
(d). Count Six. This count charged defendant _________
with using a Mastercard in the names of Leonard L. Medeiros
and Althea V. Medeiros to withdraw money from automated
teller machines. The government's evidence consisted, in
part, of photographs of the person who withdrew money with
the card in question. McCutcheon had testified that she had
rented half of the duplex at 10 Stamford Ave. to defendant
who told McCutcheon that she (defendant) was Althea Medeiros.
McCutcheon identified defendant as the person in the picture.
Defendant argues that the photographs should
not have been admitted in evidence because they were too
blurry for identification purposes. As a result, she adds,
McCutcheon's identification of her was suspect. However, as
with the other photo identification, defendant never filed a
motion to suppress the photographs. Therefore, she has
waived an appellate challenge to them. See Gomez-Benabe, 985 ___ ____________
F.2d at 611-12. In any event, defendant's arguments
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concerning McCutcheon's testimony really go to credibility.
Thus, we need not review her claims. See Flores-Rivera, 56 ___ _____________
F.3d at 323.
(e). Count One. Count one charged defendant _________
with conspiracy to commit credit card fraud. Defendant makes
some of the same arguments in support of her contention that
the government failed to show a conspiracy between her and
Onyejekwe as she made in regard to Counts Two and Four. For
the reasons stated in the discussion regarding Count Two,
defendant's arguments, first, that the acts in Counts Two,
Four and Five took place prior to July 10 and, second, that
she only was present in the Lechmere parking lot on July 10
fail. Similarly unavailing are the arguments that there was
no evidence that defendant ever used a credit card or helped
Onyejekwe use a credit card, that defendant's fingerprints
were not found on any cards, and that no cards were found on
her person. Under Pinkerton, defendant is responsible for _________
the reasonably foreseeable offenses committed by Onyejekwe in
furtherance of the conspiracy since she was a member of the
conspiracy during the relevant time periods. See Flores- ___ _______
Rivera, 56 F.3d at 324. The uses of the various credit cards ______
by Onyejekwe clearly were foreseeable.
3. Denial of Cross-Examination. ___________________________
Defendant argues that on three occasions she was
prevented from conducting cross-examination that would have
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revealed the biases and perjured testimony of the witnesses.
However, a review of the transcript shows that counsel
decided to withdraw the questions to which defendant refers
and that there is no evidence that either the court or the
government "prevented" defendant from cross-examining anyone.
Thus, this issue, being fact-based, must be raised as an
ineffective assistance claim in a motion under 28 U.S.C.
2255. See United States v. Georgacarakos, 988 F.2d 1289, ___ ______________ _____________
1297 (1st Cir. 1993) (an ineffective assistance of counsel
claim which involves issues not fully developed in the trial
record is not ripe for decision on appeal). For the same
reason, we will not consider defendant's other arguments
relating to allegedly ineffective assistance of counsel.
4. Improper Jury Instruction. _________________________
Defendant complains that the trial judge failed to
instruct the jury that 1029 requires the government to
prove that she "actually used" an unauthorized device to
obtain something of value. Because defendant never objected
below, we review for plain error. See United States v. ___ ______________
McGill, 952 F.2d 16, 17 (1st Cir. 1991). The jury ______
instructions plainly reveal that the trial judge correctly
instructed the jury that, as Pinkerton holds, defendant could _________
be found guilty of fraudulent use of an access device if the
jury found that another's use of such a device was part of
the conspiracy, that such use was a reasonably foreseeable
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consequence of the conspiracy, and that defendant was a
member of the conspiracy when the device was used. As a
result, there was no plain error.
Defendant's second argument is that the trial judge
improperly used the word "conspirators" in reciting the overt
acts charged in the indictment. Essentially, the trial judge
substituted the word "conspirators" for the words "the
defendants, Christopher Onyejekwe and Elizabeth Mogaji."
Thus, as to the first overt act, the judge stated that "on or
about July 6, 1991, conspirators purchased merchandise at ____________
Lechmere. . . ." Defendant alleges that this communicated to
the jury the trial judge's belief that she was guilty.
Again, there is no plain error here. The trial court judge
instructed the jury that the indictment was not proof of
anything and clearly defined what elements were necessary for
the jury to find that defendant was part of a conspiracy.
The judge also instructed the jury that he had no opinion
concerning the facts.
5. Motion to Recuse. ________________
Defendant argues that Judge Boyle, the trial judge,
should have recused himself due to his bias and prejudice
against defendant. She claims that he was convinced of her
guilt from the beginning. This claim, in part, arose when
defendant and her lawyer allegedly heard Judge Boyle state at
a bail reconsideration hearing that there "was a conspiracy
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among you people." Defendant also rests her recusal argument
on Judge Boyle's post-trial threat that he would strike
defense counsel's name from the court-appointment list.
As for the first comment, it does not appear in the
transcript of the bail reconsideration hearing. Further, the
court reporter reviewed the tape recording of the bail
reconsideration hearing and verified the transcript's
authenticity. In any event, defendant has waived this issue
by waiting until after trial to file a motion for recusal. _____
See In re Abijue Realty Corp., 943 F.2d 121, 126 (1st Cir. ___ __________________________
1991) (a litigant, knowing of a ground for recusal cannot
wait and decide whether he or she likes the subsequent
treatment he or she receives).
The second comment, unlike the first, is not even
directed at defendant. Further, a reading of the transcript
reveals that this apparently was the second time defense
counsel was unprepared to go forward on a matter. We do not
think that this comment provides what "an objective,
knowledgeable member of the public would find to be a
reasonable basis for doubting the judge's impartiality." See ________________ ___
In re United States, 666 F.2d 690, 695 (1st Cir. 1981) _____________________
(stating the applicable standard under 28 U.S.C. 455(a)).
Simply, judicial expressions of vexation at lawyers who are
not ready to proceed on time do not raise a question of
judicial bias.
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6. Motion for a New Trial. ______________________
In her recitation of the facts, defendant mentions
that the district court denied her motion for a new trial as
untimely. However, she fails to include in her brief any
argument why we should reverse the trial court's ruling. ________
Thus, she has waived the issue. A review of the issue
nonetheless shows that this claim is meritless.
Defendant was convicted on May 10, 1994 and the
certificate of service of the new trial motion was dated July
6, 1994. Fed. R. Crim. P. 33 requires such a motion to be
filed within seven days after verdict. At the hearing on the
motion, defendant's trial attorney stated that defendant
never had asked him to file a motion for a new trial. Judge
Boyle concluded that defendant had been confused over how one
obtains a new trial -- by a motion or an appeal -- and had
asked her attorney to file an appeal. In any event, the ______
untimeliness of the motion for a new trial, a finding
supported by the evidence, means that the trial court was
without jurisdiction to rule on it. United States v. Lema, _____________ ____
909 F.2d 561, 565 (1st Cir. 1990).
The judgment of conviction is affirmed. ________
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Document Info
Docket Number： 94-2265
Filed Date： 5/3/1996
Precedential Status： Precedential
Modified Date： 9/21/2015